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A resurgent judiciary pitted against a deprecating executive?

Given that the present government ridden with an unsolvable mess owing to corruption scandals and an exposed decision-making process for which the Prime Minister today accepted responsibility, it would interesting to examine the role of the judiciary in the specific context of supervision of the government’s activities.

The democracy in India was quite a scandalised one till the end of last year, given its disregard for valuable rights of the citizenry, the lack of accountability in its own portals and its reticence in taking on the Executive and the Legislative wings of the State. On several occasions when its own legitimacy was in question amidst widespread criticism as to its authority to appoint itself and exposed instances of disproportionate assets of its members- casting tenable aspersions on its own functioning, the judiciary didn’t really address those concerns, instead conveniently bypassing them against its shroud of secrecy and independence.

Linked closely to the accountability of the judiciary is the extent of judicial authority to question accountability mechanisms within the Executive. The controversy surrounding the 2G-Spectrum and the appointment of the CVC provide us a valuable opportunity to evaluate its role as guardian of the democratic process. An article by Shylashri Shankar in yesterday’s Times of India reflected on the change in judicial attitudes towards vital issues of public importance, specifically as to rights of the citizenry that are not expressly provided.

The Apex Court’s decision quashing the appointment of the CVC P.J.Thomas based on procedural irregularities in the decision making process indicates that the judiciary under the new Chief Justice S.H.Kapadia isn’t hesitant in taking intruding into a critical executive domain when the issues concerned involve legitimate concerns of the democracy, even if such concerns are not directly addressable by the Court. Given that the appointment of the CVC is a critical political and constitutional decision, the consequences of which would weigh significantly on the ruling parties, this decisions of the Court is quite a severe blow to the government. Questioning the decision of the high power committee that made this appointment however turned on an interpretation of what would be “impeccable reputation” of the appointee. Evidently this is a purely subjective issue; therefore the Court’s approach of even scrutinising the decision was very impressive, let alone quashing the decision itself. While the extent of power exercisable in this regard, and the scope of a PIL to question such decisions of the Executive are a matter to be debated separately, the merits of this specific matter would point to a very changing attitude of the judiciary at the start of the decade.

I would like to point out other judicial decisions in the past years where the Court has actively tried to usurp executive functions in the interests of an aggrieved citizenry. For instance, earlier in 2010 the Court followed closely on the heels of an earlier decision by directing special investigations by the CBI into matters concerning a State to which the CBI’s jurisdiction did not exist. Given that the State of West Bengal here specifically barred the CBI from interfering, an executive decision was made by the Court against the consent of the State Executive. Similarly, executive decisions were questioned again when two governors challenged their own dismissal on grounds they alleged to be unconstitutional and against the ‘spirit of their office’. Here too the court struck a mighty blow to the strngth of the Executive. As Shylashri in her article points out, this pathology of the Court could in fact depend on the extent of legitimacy of the government itself. Her take on this is that the attitude of the judiciary towards the government has varied with the majority commanded by the ruling government in the legislature. For instance, in the Indra Gandhi period when the Congress commanded an absolute majority, judicial review succumbed to the will of the ruling coalition as opposed to other periods when the government is a result of an unstable or weak coalition when the judiciary takes it upon itself to remedy the errors of accountability and faulty decision making of the government upon itself.

Manoj Mitta in his article provides an interesting angle to this change in judicial attitude, attributing it to the new CJI.